FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

R.J. REYNOLDS TOBACCO COMPANY;  No. 03-16535

LORILLARD TOBACCO COMPANY; D.C. No.

R. J. REYNOLDS SMOKE SHOP, INC., CV-03-00659-LKK

Plaintiffs-Appellants,

ORDER DENYING

v. PETITIONS FOR

SANDRA SHEWRY, Director of the REHEARING EN

California Department of Health  BANC AND

Services; DILEEP G. BAL, Acting AMENDING

Chief of the Tobacco Control OPINION AND

Section of the California DISSENT AND

Department of Health Services; AMENDED

STATE OF CALIFORNIA, OPINION AND

Defendants-Appellees. AMENDED

DISSENT 

Appeal from the United States District Court

for the Eastern District of California

Lawrence K. Karlton, Senior Judge, Presiding

Argued and Submitted

May 10, 2004—San Francisco, California

Filed September 28, 2004

Amended September 9, 2005

Before: Betty Binns Fletcher, Stephen Trott and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher;

Dissent by Judge Trott

12895
COUNSEL

H. Joseph Escher III, Howard Rice Nemerovski Canady Falk

& Rabkin, San Francisco, California, for plaintiffs-appellants

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12897
R.J. Reynolds Tobacco Company and R.J. Reynolds Smoke

Shop, Inc., and Shannon L. Spangler and M. Kevin Underhill,

Shook, Hardy & Bacon, San Francisco, California, for

plaintiff-appellant Lorillard Tobacco Company. 

Robert M. O’Neil and J. Joshua Wheeler, Charlottesville, Virginia, for amici curiae Thomas Jefferson Center for the Protection of Free Expression and the Media Institute, in support

of the plaintiffs-appellants. 

Daniel J. Popeo and Richard A. Samp, Washington, D.C., for

amici curiae Washington Legal Foundation, in support of the

plaintiffs-appellants. 

Karen Leaf, Deputy Attorney General, Sacramento, California, for the defendants-appellees. 

Deborah B. Caplan and Robert S. McWhorter, Olson, Hagel

& Fishburn, LLP, Sacramento, California, for amici curiae

American Cancer Society, California Division, Inc., American

Heart Association, Western States Affiliates, and American

Lung Association of California, in support of the defendantsappellees. 

ORDER

In light of the Supreme Court’s decision in Johanns v. Livestock Marketing Ass’n, 125 S. Ct. 2055 (2005), the opinion

and dissent filed on September 28, 2004, and appearing at slip

op. 14,067, 384 F.3d 1126 (9th Cir. 2004), and slip op.

14,096, 384 F.3d 1126, 1142, respectively, are amended as

follows: 

At slip op. 14,095, line 31, insert the following postscript

after “we affirm the judgment of the district court.” and

before “AFFIRMED.”: 

12898 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
POSTSCRIPT

After we filed our opinion, the Supreme Court decided

Johanns v. Livestock Marketing Ass’n, 125 S. Ct. 2055

(2005), holding that the Beef Promotion and Research Act of

1985 did not violate the First Amendment by imposing an

assessment on all sales and importation of cattle to fund beef

promotional campaigns with which many of the assessed parties disagreed. The Court reasoned, as we do here, that the Act

was not susceptible to a First Amendment compelled-subsidy

challenge because the assessments funded government

speech. Although the Johanns opinion affirms our reasoning,

Judge Trott remains in dissent. He would now remand to the

district court pursuant to the Court’s statement in Johanns that

an as-applied challenge might lie “if it were established . . .

that individual beef advertisements were attributed to respondents.” Id. at 2065. 

Appellants have never, before us or the district court,

claimed that the ads at issue in this litigation could be or were

attributed to them; nor does the record reveal a material question of fact on the issue. A reasonable viewer could not

believe that these anti-industry ads, expressly identified as

“Sponsored by the California Department of Health Services,”

were created, produced or approved by the appellants. The ad

singled out by the dissent as “put[ting] [words] directly into

the mouth of the tobacco industry,” for example, is unmistakable satire. In that ad, children play in a schoolyard while cigarettes fall like rain from the sky and a voiceover states “[w]e

have to sell cigarettes to your kids. We need half a million

new smokers a year . . . so we advertise near schools, at candy

counters.” No reasonable viewer could overlook the satirical

tenor of this ad and attribute the voiceover text to actual

tobacco executives. 

We also find inapposite the dissent’s analogy to our recent

order in Charter v. United States Department of Agriculture,

412 F.3d 1017 (9th Cir. 2005). We remanded on the question

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12899
of attribution in that case because the record indicated that the

National Cattlemen’s Beef Association “routinely, before

Congress, and in other public ways and in press announcements, states that it is the trade organization and marketing

organization of America’s one million cattle producers.” Id.

at 1019. The record in this case contains no evidence that the

state ever attributed its ads to the appellants or that a reasonable viewer could have done so; accordingly, we reject the

analogy to Charter and decline Judge Trott’s invitation to

remand. 

At slip op. 14,108, line 8, insert the following postscript

after “is without merit.”:

POSTSCRIPT

Shortly after I circulated this dissent, the Supreme Court

decided Johanns v. Livestock Marketing Ass’n, 544 U.S.

______, 125 S.Ct. 2055 (2005). For the majority of the Court,

Justice Scalia wrote: 

The compelled-subsidy analysis is altogether unaffected by whether the funds for the promotions are

raised by general taxes or through a targeted assessment. Citizens may challenge compelled support of

private speech, but have no First Amendment right

not to fund government speech. And that is no less

true when the funding is achieved through targeted

assessments devoted exclusively to the program to

which the assessed citizens object. The First Amendment does not confer a right to pay one’s taxes into

the general fund, because the injury of compelled

funding (as opposed to the injury of compelled

speech) does not stem from the Government’s mode

of accounting. 

Id. at ______ (second emphasis added) (citations omitted). 

12900 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
Not surprisingly, California’s Attorney General suggests

that this ruling “eliminates all possible doubt about the correctness” of the majority’s decision. I do not agree. 

The Johanns Court suggests, while “express[ing] no view

on the point,” that if it were to be shown that the challenged

speech would “convince a reasonable factfinder” that “all . . .

producers[ ] would be tarred with the content of each trademarked ad,” an “as applied” First Amendment challenge

might lie. Id. at __________. (emphasis added). 

Writing separately, Justice Thomas advanced the same suggestion: 

Still, if the advertisements associated their generic

pro-beef message with either the individual or organization respondents, then respondents would have a

valid as-applied First Amendment challenge. The

government may not, consistent with the First

Amendment, associate individuals or organizations

involuntarily with speech by attributing an unwanted

message to them, whether or not those individuals

fund the speech, and whether or not the message is

under the government’s control. This principle follows not only from our cases establishing that the

government may not compel individuals to convey

messages with which they disagree, . . . but also

from our expressive-associate cases, which prohibit

the government from coercively associating individuals or groups with unwanted messages. 

Id. at ______. (emphasis added) (citations omitted). 

Here, one challenged government television ad —

described by my colleagues as “particularly striking” — uses

a voice-over technique to speak to the public on behalf of the

tobacco industry. The words put directly into the mouths of

the tobacco industry disparagingly associate the appellants

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12901
and the industry with the unwanted message about which they

now complain: 

We have to sell cigarettes to your kids. We need half

a million new smokers a year just to stay in business

so we advertise near schools, at candy counters. We

lower our prices. We have to. It’s nothing personal.

You understand. 

The “we” is the appellants. 

If this language, albeit couched in a literary device, does

not “tar all in the industry” required to pay for the ad, and if

this language does not “coercively associate” and intentionally smear the appellants — all of them — with an “unwanted

message” to which they object, it is hard to know what does.

I respectfully disagree with the district court’s preemption of

this issue as a matter of law. The facts are such as to survive

summary judgment and should be submitted — as suggested

by the Supreme Court — to a factfinder. 

At the very least, we should take our lead from our recent

decision in Charter v. United States Department of Agriculture, _____ F.3d _____, _____ (9th Cir. 2005), recognizing

the difference between that case and Johanns with respect to

a possible attribution/association “as applied” challenge: 

In light of the Supreme Court’s recognition [in

Johanns] (without expressing a view on the issue)

that an attribution claim might form the basis for an

as-applied First Amendment challenge to the Act,

the district court’s decision must be vacated and the

case remanded for further proceedings to determine,

among other things, whether speech was attributed to

appellants and, if so, whether such attribution can

and does support a claim that the Act is unconstitutional as applied. Id.; see also id. at *9 n.* (Thomas,

J., concurring) (noting that, pursuant to Federal Rule

12902 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
of Civil Procedure 15, “on remand respondents may

be able to amend their complaint to assert an attribution claim”). 

There is a world of difference between what was at issue

and at stake in Johanns and what is on our docket here. In

Johanns, the question was whether, consistent with the First

Amendment, the government could compel beef producers to

fund by way of mandatory assessments a generic advertising

program promoting the sale of beef. 7 U.S.C. § 2901(b). In

our case, however, the purpose of the coerced speech is deliberately destructive of those forced to pay for it — not so in

Johanns. Does this difference matter here? I believe it does.

The difference is not just one of degree, but of material kind.

It is one thing to promote the sale of an agricultural product;

it is altogether another to attempt to destroy an entire legal

industry. 

I see this case as distinguishable from Johanns, and I continue respectfully to dissent. In my view, we should remand

to the district court for reconsideration on the “as applied”

issue as newly articulated in Johanns itself. 

With these amendments, the panel judges have voted to

deny appellants’ petition for panel rehearing. Judge Fisher has

voted to deny the petition for rehearing en banc, and Judges

Fletcher and Trott so recommend. 

The panel judges have voted to deny the petition for panel

rehearing of amicus curiae Washington Legal Foundation.

Judge Fisher has voted to deny the petition for rehearing en

banc, and Judges Fletcher and Trott so recommend. 

The full court has been advised of the petitions for rehearing en banc and no judge of the court has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35. 

Appellants’ petition for panel rehearing and petition for

rehearing en banc, filed October 19, 2004, is DENIED. 

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12903
The petition for panel rehearing and rehearing en banc of

amicus curiae Washington Legal Foundation, filed October

27, 2004, is DENIED.

No further petitions for rehearing or petitions for rehearing

en banc will be considered.

OPINION

FISHER, Circuit Judge: 

We deal here with a novel First Amendment claim. The

appellants, three tobacco companies, claim that California

violated their First Amendment rights by imposing a surtax on

cigarettes and then using some of the proceeds of that surtax

to pay for advertisements that criticize the tobacco industry.

The tobacco companies argue that this is a case of compelled

subsidization of speech prohibited by the First Amendment,

analogous to United States v. United Foods, Inc., 533 U.S.

405 (2001). California counters that the advertisements are

government speech entirely immune from First Amendment

attack. 

The tobacco companies concede that (1) the imposition of

the tax itself is not unconstitutional and (2) the message produced by the government’s advertisements creates no First

Amendment problem apart from its method of funding.

Rather, they argue for an independent First Amendment violation based on the close nexus between the government advertising and the excise tax that funds it. We reject this argument

as unsupported by the Constitution and Supreme Court precedent, and as so unlimited in principle as to threaten a wide

range of legitimate government activity. We also reject the

tobacco companies’ claim that the advertisements violated

12904 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
their rights under the Seventh Amendment or the Due Process

Clause. We thus affirm the district court.1

FACTUAL AND PROCEDURAL BACKGROUND2

In 1988, California voters approved Proposition 99, a statewide ballot initiative also known as the “Tobacco Tax and

Health Protection Act of 1988.” Cal. Rev. & Tax Code

§§ 30121-30130. The Act imposes the Cigarette and Tobacco

Products Surtax (“the surtax”), a 25-cent per-pack surtax on

all wholesale cigarette sales in California. 

The revenue generated by the surtax is placed in the “Cigarette and Tobacco Products Surtax Fund.” Twenty percent of

taxes in the surtax fund is allocated to a “Health Education

Account,” funds from which are only “available for appropriation for programs for the prevention and reduction of

tobacco use, primarily among children, through school and

community health education programs.” Id., § 30122(b)(1). 

In order to implement Proposition 99, the California Legislature directed the California Department of Health Services

(“DHS”) to establish “a program on tobacco use and health to

reduce tobacco use in California by conducting health education interventions and behavior change programs at the state

level, in the community, and other nonschool settings.” Cal.

Health & Safety Code § 104375(a). As part of this program,

called the “Tobacco Control Program,” the DHS is required

to develop a media campaign designed to raise public awareness of the deleterious effects of smoking and to effect a

reduction in tobacco use. Id., §§ 104375(b), (c), (e)(1) & (j);

1We note that the district court issued a particularly thoughtful, thorough and comprehensive opinion in this case, upon which we have substantially relied even though we do not adopt all of its reasoning. 

2Because this case comes before us on the state’s motion to dismiss

under Federal Rule of Civil Procedure 12(b)(6), we accept as true all allegations in the tobacco companies’ complaint. 

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12905
104385(a); 104400. The Tobacco Control Program is funded

entirely with money from the Health Education Account —

and thus, ultimately, exclusively from the proceeds of the surtax. 

This case concerns certain advertisements the DHS produced as part of its Tobacco Control Program. According to

the tobacco companies, the DHS concluded soon after the

establishment of the Tobacco Control Program that a media

campaign focused solely on presenting the health risks of

tobacco use would be of limited utility in reducing the incidence of smoking in California, because people tend to “tune

out” advertising that simply explains the health risks involved

with tobacco use. Thus, the DHS concluded that, in order to

carry out its mandate to encourage Californians to modify and

reduce their use of tobacco, it would be necessary to launch

a campaign to “denormalize” smoking, by creating a climate

in which smoking would seem less desirable and less socially

acceptable. 

One method used by the DHS in this campaign has been to

portray the tobacco industry itself as deceptive and as an

enemy of the public health, or, in the companies’ words, to

attack not “the desirability of a product but . . . the moral

character of [the] industry, accusing it of hypocrisy, cynicism

and duplicity.” The district court described these advertisements as follows:

A recent round of television commercials features an

actor playing a public relations executive for the fictional cigarette brand “Hampton,” detailing for viewers his unseemly methods for getting people to start

smoking. The ads end with the tagline, “Do You

Smell Smoke?,” implicitly referencing both cigarette

smoke and a smoke-and-mirrors marketing strategy.

Another ad portrays tobacco executives discussing

how to replace a customer base that is dying at the

rate of 1,100 users a day. Some of the ads end with

12906 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
images of mock warning labels such as: “WARNING: The tobacco industry is not your friend.”; or

“WARNING: Some people will say anything to sell

cigarettes.” Several spots suggest that tobacco companies aggressively market to children. In one particularly striking television ad entitled “Rain,” children

in a schoolyard are shown looking up while cigarettes rain down on them from the sky. A voice-over

states “We have to sell cigarettes to your kids. We

need half a million new smokers a year just to stay

in business. So we advertise near schools, at candy

counters. We lower our prices. We have to. It’s nothing personal. You understand.” At the conclusion,

the narrator says, “The tobacco industry: how low

will they go to make a profit?” 

R.J. Reynolds v. Bonta, 272 F.Supp. 2d 1085, 1089 (2003).

The district court also noted that each of the challenged advertisements is “identified as ‘Sponsored by the California

Department of Health Services.’ ” Id. The tobacco companies

do not claim that these advertisements contain any affirmatively false statements. 

That California itself is interested in the outcome of the

campaign is made clear by the Legislature’s finding that

“[s]moking is the single most important source of preventable

disease and premature death in California” and that preventing tobacco use by children and young adults is the “highest

priority in disease prevention for the state of California.” Cal.

Health & Safety Code § 104350(a). The district court

explained that “there is substantial evidence, including published medical studies, indicating that the Proposition 99 programs, and the media campaign in particular, have been

successful in achieving their goals.” Bonta, 272 F. Supp. 2d

at 1088 n.5 (noting the following articles describing the success of California’s campaign in reducing the incidence of

smoking: C. Fichtenberg and S. Glantz, Association of the

California Tobacco Control Program with Declines in CigaR.J. REYNOLDS TOBACCO CO. v. SHEWRY 12907
rette Consumption and Mortality from Heart Disease, NEW

ENG. J. MED. 343:24, 1772-1777 (2000); M. Siegel, Mass

Media Antismoking Campaigns: A Powerful Tool for Health

Promotion, ANNALS OF INTERNAL MED., 129:2, 128-132

(1998); J.P. Pierce, et al., Has the California Tobacco Control

Program Reduced Smoking?, JAMA 280:10, 893-899

(1998)). 

The appellant tobacco companies here are R.J. Reynolds

Tobacco Company; its wholly owned subsidiary R.J. Reynolds Smoke Shop, Inc.; and Lorillard Tobacco Company. R.J.

Reynolds pays the surtax through sales from its smoke shop

subsidiary; Lorillard pays the surtax in connection with certain of its research and marketing activities in California.

These companies are not the most important sources of revenue for the surtax, however. Because the surtax is imposed on

distributors of cigarettes, most surtax payments are made not

by cigarette manufacturers themselves, but by cigarette

wholesalers. Nonetheless, because the tobacco companies sell

or provide small quantities of cigarettes directly to smokers in

California, they have paid and will in the future be required

to pay the surtax. The tobacco companies here paid approximately $14,000 in surtax funds, thus contributing approximately $2,800 of the $25 million spent on the challenged ads.

Bonta, 272 F. Supp. 2d at 1090. 

The tobacco companies brought five causes of action

against the state defendants (“the state” or “California”) to the

district court, seeking both injunctive and declaratory relief.

They argued that the use of the surtax to fund the “antiindustry” advertisements violated the First Amendment, that

the advertisements improperly stigmatized them in violation

of the Fourteenth Amendment, that the advertisements interfered with their right to a jury trial under the Seventh and

Fourteenth Amendments and that the advertisements violated

the California Constitution.3 The state moved to dismiss under

3This state law claim is not before us. 

12908 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
Federal Rule of Civil Procedure 12(b)(6). The district court

dismissed with prejudice all of the companies’ federal constitutional claims, and the companies timely appealed. 

DISCUSSION

I. First Amendment 

We begin by addressing the scope of the First Amendment

issue. The tobacco companies do not raise a First Amendment

challenge to California’s right to sponsor “anti-industry”

advertisements. As their brief to this court puts it, “if the

broadcasts were funded by general taxes rather than by a tax

imposed exclusively on the tobacco industry, the anti-industry

ads would raise no First Amendment issue.” Nor do the companies argue that the surtax itself has interfered with their constitutional rights. See, e.g., Arkansas Writers’ Project, Inc. v.

Ragland, 481 U.S. 221, 227-29 (1987) (invalidating a statute

that granted a tax exemption for religious, professional, trade

and sports journals that did not apply to other journals); Minneapolis Star & Tribune v. Minn. Comm’r of Revenue, 460

U.S. 575, 591-93 (1983) (invalidating a special tax on the

press limited to only a few newspapers). Their claim is specific: they argue that using the money raised from an excise

tax that targets the tobacco industry to pay for advertising that

denigrates the industry violates their constitutional rights. 

Before discussing the precedent upon which the tobacco

companies rely, we note that this is a novel argument. At

issue is neither the government’s power to speak nor the government’s power to tax. Chief Justice John Marshall famously

stated that “the power to tax involves the power to destroy.”

McCullough v. Maryland, 17 U.S. (4 Wheat.) 316, 431

(1819). According to the tobacco companies, however, this

case involves neither an invalid exercise of the government’s

power to tax nor a claim that they have been destroyed by the

government’s speech. Rather, the companies claim a constitutional violation in the link between the excise tax and the govR.J. REYNOLDS TOBACCO CO. v. SHEWRY 12909
ernment speech to which they object. By suggesting that

certain taxpayers should be able to object to government

speech whenever an excise tax is used to fund a message that

particularly affects the group that pays the tax, the tobacco

companies’ argument would implicate a range of other programs. As we shall explain, we reject the “nexus” argument

as applied to excise taxation. A mere link between an excise

tax and a government-sponsored advertising campaign, absent

a claim that either the tax or the advertising is unconstitutional, does not violate the First Amendment. 

A. United Foods, the Compelled Speech Doctrine and

Taxation

The tobacco companies rely in large part upon one case:

United States v. United Foods, Inc., 533 U.S. 405 (2001).4 We

do not agree that United Foods controls. Rather, we conclude

that the compelled speech cases, of which United Foods is

one, do not apply where an excise tax is used to produce a

message that indisputably comes from the government itself.

In United Foods, the Court considered a federal program

created by the Mushroom Promotion, Research, and Consumer Information Act, 7 U.S.C. § 6101 et seq. As the Court

described the program, 

The Act authorizes the Secretary of Agriculture to

establish a Mushroom Council to pursue the statute’s

goals. Mushroom producers and importers, as

defined by the statute, submit nominations from

among their group to the Secretary, who then desig4The Supreme Court has recently granted certiorari in Livestock Mktg.

Ass’n v. USDA, 335 F.3d 711 (8th Cir. 2003), cert. granted sub nom.

Veneman v. Livestock Mktg. Ass’n, 124 S. Ct. 2389, 72 U.S.L.W. 3721

(U.S. May 24, 2004) (No. 03-1164) and Nebraska Cattlemen, Inc. v. Livestock Mktg. Ass’n, 124 S.Ct. 2390, 72 USLW 3539 (U.S. May 24, 2004),

involving the interaction between the compelled speech and government

speech doctrines. 

12910 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
nates the Council membership. To fund its programs,

the Act allows the Council to impose mandatory

assessments upon handlers of fresh mushrooms in an

amount not to exceed one cent per pound of mushrooms produced or imported. The assessments can

be used for “projects of mushroom promotion,

research, consumer information, and industry information.” It is undisputed, though, that most moneys

raised by the assessments are spent for generic

advertising to promote mushroom sales. 

533 U.S. at 408 (citations omitted). The petitioner in that case

was a mushroom producer that refused to pay its mandatory

assessment. The Supreme Court described the question presented as “whether the government may underwrite and sponsor speech with a certain viewpoint using special subsidies

exacted from a designated class of persons, some of whom

object to the idea being advanced.” 533 U.S. at 410. Under

the facts of United Foods, the Supreme Court held that the

answer to that question was “no.” The Court held that by

requiring the mushroom producer to contribute to generic

advertisements for mushroom sales to which it objected, the

government had put “First Amendment values . . . at serious

risk” by “compell[ing] a discrete group of citizens [ ] to pay

special subsidies for speech on the side that [the government]

favors.” Id. at 411. 

Read broadly, and taken in isolation, this language might

plausibly suggest that the tobacco companies have the right to

object to the advertisements at issue here because they have

paid “special subsidies” for the advertisements in the form of

a tax that disproportionately affects them. Yet United Foods

also makes clear that not every case in which the government

mandates support for speech from a particular group necessarily creates a First Amendment violation. Most importantly,

the Court specifically declined to address whether the same

First Amendment analysis would apply to cases in which the

speech produced was “government speech” that derived from

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12911
the state itself and not the Mushroom Council. See id. at 416

(“The Government argues the advertising here is government

speech, and so immune from the scrutiny we would otherwise

apply. As the government admits . . . however, this argument

was not raised or addressed in the Court of Appeals.”) (citations omitted). United Foods also carefully relied on the

teaching of previous compelled speech cases to reach its holding about the contributions to the Mushroom Council. Id. In

order to understand the impact of United Foods, therefore, we

examine the origins and the purpose of the compelled speech

doctrine. 

[1] It has long been established that the First Amendment

prohibits the government from compelling citizens to express

beliefs that they do not hold. “[T]he right of freedom of

thought protected by the First Amendment against state action

includes both the right to speak freely and the right to refrain

from speaking at all.” Wooley v. Maynard, 430 U.S. 705, 714

(1977) (forbidding a state government from compelling

motorists to display the message “Live Free or Die” on their

license plates); see also West Virginia State Bd. of Educ. v.

Barnette, 319 U.S. 624 (1943) (preventing a state government

from forcing children to salute the American flag when the

children’s religious beliefs forbade such behavior). These

cases are not directly applicable here because there is no

claim that the tobacco companies have been forced into

expressing any position. 

The Court extended this fundamental principle of freedom

of expression to situations “involving expression by groups

which include persons who object to the speech, but who,

nevertheless, must remain members of the group by law or

necessity.” United Foods, 533 U.S. at 413. The first such

case, Abood v. Detroit Board of Education, 431 U.S. 209

(1977), involved a challenge by public school teachers to a

collective bargaining agreement. The agreement required nonunion members who were represented by the teachers union

to pay a service fee equal to union dues. Some portions of this

12912 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
service fee were then used to pay “for political and ideological purposes unrelated to collective bargaining.” Id. at 232.

The Court held that this program violated the principle that

“the freedom of an individual to associate for the purpose of

advancing beliefs and ideas” is protected by the First Amendment. Id. at 233. Although the union could compel objectors

to provide funds for purposes that were “germane” to “its

duties as [a] collective-bargaining representative,” it would

violate basic principles of freedom of association to compel

the financial support of objectors for ideological purposes

unrelated to collective bargaining. Id. at 235. The Court revisited similar issues in Keller v. State Bar of California, 496

U.S. 1 (1990), in which it invalidated a program in which

mandatory dues to the California State Bar were used, over

member’s objections, to advance political and ideological

causes to which some bar members did not subscribe. The

Court held that the state bar could use compulsory membership dues to finance activities “germane” to the purposes for

which the “compelled association and integrated bar [were]

justified . . . the State’s interest in regulating the legal profession and improving the quality of legal services.” Id. at 13. It

could not, however, order compulsory dues to be used to

“fund activities of an ideological nature which fell outside of

those areas of activity.” Id. at 14. 

Abood and Keller set forth the principles that were later

applied — with differing results — in Glickman v. Wileman

Bros. & Elliot, 521 U.S. 457 (1997), and in United Foods to

programs in which the government compels agricultural producers to contribute to joint marketing programs. In Glickman, the Court rejected a First Amendment challenge to a

regulatory program that required tree fruit growers to fund

marketing campaigns as part of a broader regulation of the

industry. The crucial distinction between Glickman and

United Foods is that the mandatory assessment in Glickman

was “ancillary to a more comprehensive program restricting

market autonomy.” United Foods, 533 U.S. at 411. We have

explained the distinction between the two cases as follows: “If

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12913
the generic advertising assessment is part of a ‘comprehensive

program’ that ‘displace[s] many aspects of independent business activity,’ exempts the firms within its scope from the

antitrust laws, and makes them ‘part of a broader collective

enterprise,’ the assessment does not violate the First Amendment.” Delano Farms v. Cal. Table Grape Comm’n, 318 F.3d

895, 898-99 (9th Cir. 2003). The program in United Foods, on

the other hand, raised a constitutional problem because “[i]f

the program is, in the main, simply an assessment of independent and competing firms to pay for generic advertising, it

does violate the First Amendment.” Id. at 899. The United

Foods rule protects against “making one entrepreneur finance

advertising for the benefit of his competitors” when there is

no broader regulatory interest at stake. 533 U.S. at 418 (Stevens, J., concurring). 

Seen in this perspective, United Foods is a logical extension of a long line of cases that have protected both freedom

of expression and freedom of association. See United States

v. Frame, 885 F.2d 1119, 1132 (3d Cir. 1989) (describing the

“underlying rationale of the right to be free from compelled

speech or association” as guiding the Abood line of cases).

Under Wooley and Barnette, the First Amendment does not

permit the government to force citizens to express beliefs that

are not their own. As an extension of this principle, under

Abood, Keller and United Foods, the First Amendment also

does not permit the government to force citizens to contribute

to a private association when the funds are used primarily to

support expression from a certain viewpoint.5 The First

5Read in this context, it is clear that United Foods relied on harm to

expressive and associational freedoms in order to support its conclusion.

See 533 U.S. at 413 (“It is true that the party who protests the assessment

here is required simply to support speech by others, not to utter the speech

itself. We conclude, however, that the mandated support is contrary to the

First Amendment principles set forth in cases involving expression by

groups which include persons who object to the speech, but who, nevertheless, must remain members of the group by law or necessity.”) (empha12914 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
Amendment may, however, under Abood and Glickman, permit the government to compel contributions to an association’s expression when that expression is germane to a

broader regulatory scheme that compelled the association in

the first place.6

[2] Nothing in United Foods suggests that the compelled

speech doctrine applies to situations where the government

imposes an excise tax on private citizens and then uses the

money to speak in the name of the government itself. No

court has held otherwise. See NAACP v. Hunt, 891 F.2d 1555,

1566 (11th Cir. 1990) (“Abood has never been applied to the

government, however; if it were, taxation would become

impossible.”). An otherwise valid tax for an otherwise valid

purpose ordinarily must bind even those who object to the

government’s objective. In Board of Regents of the University

of Wisconsin System v. Southworth, 529 U.S. 217, 229 (2000),

the Court explained that:

It is inevitable that government will adopt and pursue programs and policies within its constitutional

sis added). The Court emphasized that contributions to the Mushroom

Council forced certain private parties to pay for the speech of other private

parties — a violation of both expressive and associative freedom. Id. at

416 (noting “the mandatory assessments imposed to require one group of

private persons to pay for speech by others”). 

6Because United Foods is easily reconciled with previous Supreme

Court precedent, we do not see a basis in United Foods for our dissenting

colleague’s view that, in distinguishing Glickman, the Court intended to

untether the compelled speech doctrine from its expressive and associational moorings and create a new constitutional right to challenge all

forms of targeted taxation. Nor does United Foods suggest that we should

apply principles governing government suppression of private commercial

speech, see Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447

U.S. 557, 564 (1980), to this case — in which the government has neither

suppressed nor compelled speech, but has merely used an excise tax to

fund a governmental message. Surely if the Court in United Foods had

intended to create such broadly sweeping principles, it would have said so.

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12915
powers but which nevertheless are contrary to the

profound beliefs and sincere convictions of some of

its citizens. The government, as a general rule, may

support valid programs and policies by taxes or other

exactions binding on protesting parties. Within this

broader principle it seems inevitable that funds

raised by the government will be spent for speech

and other expression to advocate and defend its own

policies. 

[3] Put simply, the rationale of the Abood and Keller line

of cases — protecting freedom of expression and association

— does not apply to government speech when the government acts as both a taxing authority and as a speaker. Paying

a tax, even an excise tax, does not create a compelled form of

association. When the government acts as a speaker it may

espouse views that directly contradict those of taxpayers without interfering with taxpayers’ freedom of expression. In a

democracy based on majority rule, such a conclusion is inescapable. “Government officials are expected as a part of the

democratic process to represent and to espouse the views of

a majority of their constituents. . . . If every citizen were to

have a right to insist that no one paid by public funds express

a view with which he disagreed, debate over issues of great

concern to the public would be limited to those in the private

sector, and the process of government as we know it radically

transformed.” Keller, 496 U.S. at 12-13. As we have said

before, “[s]imply because the government opens its mouth to

speak does not give every outside individual or group a First

Amendment right to play ventriloquist.” Downs v. Los Angeles Unified School Dist., 228 F.3d 1003, 1013 (9th Cir. 2000).

B. The California Regulation and Compelled Speech

The companies claim that their situation is unique because

the DHS pays for its anti-industry ads exclusively from revenues raised ultimately through the surtax, which in turn is

derived exclusively from sales of cigarette packages. They

12916 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
argue that imposing an excise tax on a particular industry and

then earmarking the use of the tax funds for advertisements

that criticize that industry suffices to make the companies

similarly situated to the plaintiffs in the compelled speech

cases. 

There is a fundamental difference between the excise tax/

spending regime at issue here and the compelled contributions

to private associations that were at issue in Abood, Keller and

United Foods. When a union, a state bar association or even

a mushroom growers’ association speaks, it represents only

the interests of that particular entity. When California uses

funds from the tobacco surtax to produce advertisements, it

does so in the name of all of California’s citizens. As the district court observed, “[The tobacco companies] are not seeking to prevent coerced participation in private association;

rather, they are attempting to exercise a taxpayer’s veto over

speech by the government itself.” Bonta, 272 F. Supp. 2d at

1100. That California has chosen to fund a valid public health

message through a targeted excise tax does not mean that it

is no longer speaking as the State of California. 

The key issue is not the targeted nature of the tax but the

degree of governmental control over the message. See Livestock Mktg. Ass’n v. USDA, 335 F.3d 711, 723 (8th Cir. 2003)

(noting that “the greater the government’s responsibility for,

and control over, the speech in question, the greater the government’s interest therein”). In the compelled speech cases

cited by the companies, control over the content of the message produced had been delegated to an association “representative only of one segment of the population, with certain

common interests.” Abood, 431 U.S. at 259 n.13 (Powell, J.,

concurring). The problem with the government forcing private

citizens to contribute funds in those cases was that the funds

were being used to support the speech of such segmented,

specific interests. Here there can be no doubt that the tobacco

companies’ funds are being used to speak on behalf of the

people of California as a whole. Any coercion — that is, the

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12917
collection of funds used to produce a particular message — is

performed not in the name of a segment of the public, but of

the state. 

Indeed, a wide range of First Amendment cases differentiate between the government controlling the expenditure of its

own revenue and the government sharing control with private

or quasi-private parties. See, e.g., Rust v. Sullivan, 500 U.S.

173, 197 (1991) (distinguishing situations where the government imposes a direct constraint on the use of its own money

from situations “in which the Government has placed a condition on the recipient of the subsidy rather than on a particular

program or service, thus effectively prohibiting the recipient

from engaging in the protected conduct outside the scope of

the federally funded program”); FCC v. League of Women

Voters of Cal., 468 U.S. 364, 399-400 (1984) (same); Widmar

v. Vincent, 454 U.S. 263, 268 (1981) (establishing limited

public forum doctrine and explaining that the First Amendment “forbids a State to enforce certain exclusions from a

forum generally open to the public, even if it was not required

to create the forum in the first place”). 

This is not to say that a state may avoid the limits of the

First Amendment simply by labeling a compelled contribution

a contribution to the government’s own speech. As the

Supreme Court has noted, a state law “determination that [an

entity] is a ‘government agency,’ and therefore entitled to the

treatment accorded a governor, a mayor, or a state tax commission, for instance, is not binding on us when such a determination is essential to the decision of a federal question.”

Keller, 496 U.S. at 11. The analysis may differ when the government nominally controls the production of advertisements,

but as a practical matter has delegated control over the speech

to a particular group that represents only one segment of the

population. See Frame, 885 F.2d at 1133-34 (describing compelled contributions to a nominally government controlled

“Cattleman’s Board,” where the persons with actual control

over the disbursement of funds were private individuals

12918 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
“whose primary or overriding purpose is to promote the welfare of the cattle producers” (quoting 7 U.S.C. § 2905(b)(4)));

see also Mich. Pork Producers Ass’n v. Veneman, 348 F.3d

157, 161 (6th Cir. 2003) (“We conclude that the pork industry’s extensive control over the Pork Act’s promotional activities prevents their attribution to the government.”).7

 But that

situation is not present here. As the district court put it,

“[w]hile in some cases the distinction between government

speech and compelled allegiance may present ‘difficult

issues,’ the analysis here is straightforward.” Bonta, 272 F.

Supp. 2d at 1100 (quoting United Foods, 533 U.S. at 417). 

[4] In their complaint, the tobacco companies themselves

allege that the director of the DHS, a government agency, is

“ultimately responsible for the advertising challenged in this

action.” The DHS is acting expressly according to California

law, which directs the DHS to implement a media campaign

emphasizing “both preventing the initiation of tobacco use

and quitting smoking . . . based on professional market

research and surveys necessary to determine the most effective method of diminishing tobacco use among specified target populations.” Cal. Health & Safety Code § 104375(e)(1).

7Thus, the dissent’s claim that there is an “untenable distinction”

between situations in which the government speaks for itself and situations

where the government has effectively licensed control over speech to a

private organization is misplaced. In similar cases, courts can (and often

have) examined whether or not the government has delegated authority to

a private body, such that a compelled subsidy is being used to support a

private interest instead of a governmental one. See, e.g., Cochran v. Veneman, 359 F.3d 263, 278 (3d. Cir. 2003) (finding First Amendment concerns where an agricultural act “seem[ed] to really be special interest

legislation on behalf of the industry’s interest more . . . than the government’s”). Indeed, this was what was at issue in the language the dissent

quotes from the Third Circuit’s decision in Frame; that court identified an

improper “coerced nexus between the individual and . . . specific expressive activity” in a case where “the Cattlemen’s Board seems to be an

entity ‘representative of one segment of the population, with certain common interests.’ ” Frame, 885 F.2d at 1132, 1133 (citing Abood, 431 U.S.

at 259 n.13 (Powell, J., concurring)). 

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12919
The advertisements are also clearly identified as coming from

the government itself and not from the tobacco companies, the

tobacco industry or any other private party or group. Cf.

Frame, 885 F.2d at 1133 n.11 (describing advertisements

“without mention of the Secretary or the Department of Agriculture, thus failing to communicate that the advertisements

are funded through a government program”). As noted above,

all the contested advertisements expressly state that they are

sponsored by the DHS. Plainly, in imposing the surtax and in

producing the contested advertisements, California is acting

on behalf of all of its citizens.8

8As a point of comparison, it is worth citing those aspects of the organization of the State Bar of California upon which the Supreme Court relied

to hold that its speech should not be classified as coming from the government itself: 

The State Bar of California is a good deal different from most

other entities that would be regarded in common parlance as

“governmental agencies.” Its principal funding comes, not from

appropriations made to it by the legislature, but from dues levied

on its members by the board of governors. Only lawyers admitted

to practice in the State of California are members of the State

Bar, and all 122,000 lawyers admitted to practice in the State

must be members. [The State Bar] undoubtedly performs important and valuable services for the State by way of governance of

the profession, but those services are essentially advisory in

nature. The State Bar does not admit anyone to the practice of

law, it does not finally disbar or suspend anyone, and it does not

ultimately establish ethical codes of conduct. All of those functions are reserved by California law to the State Supreme Court.

. . . The State Bar of California was created, not to participate in

the general government of the State, but to provide specialized

professional advice to those with the ultimate responsibility of

governing the legal profession. Its members and officers are such

not because they are citizens or voters, but because they are lawyers. We think that these differences between the State Bar, on

the one hand, and traditional government agencies and officials,

on the other hand, render unavailing [the State Bar’s] argument

that it is not subject to the same constitutional rule with respect

to the use of compulsory dues as are labor unions representing

public and private employees. 

Keller, 496 U.S. at 11, 13 (footnotes and citations omitted). Here, by contrast, the contested advertisements are unquestionably part of the “general

government of the state.” 

12920 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
C. Excise Taxation, Government Speech and the First

Amendment 

In short, by being required to contribute to the DHS’s

advertisements, the tobacco companies have not been

deprived of their freedom of expression or their freedom of

association, which are the harms that the compelled speech

cases protect against. The tobacco companies’ claim goes to

another kind of harm — the harm caused by paying an excise

tax used to fund government speech of which they understandably disapprove. 

The tobacco companies concede that the state would not

have violated the First Amendment had it imposed the same

surtax on cigarette packs, commingled the proceeds of the

surtax with the state’s general fund and then used the general

fund to produce precisely the same advertisements. Thus, the

tobacco companies object only to the nexus between the

excise tax and the advertisements. Federal courts have traditionally given great deference to a state’s control over its

financial affairs when faced with constitutional challenges.

See, e.g., San Antonio Independent Sch. Dist. v. Rodriguez,

411 U.S. 1, 40 (1973) (noting, in a challenge under the Equal

Protection Clause, that “[t]his Court has often admonished

against such interferences with the State’s fiscal policies”);

see also Welsh v. Likins, 550 F.2d 1122, 1131-32 (8th Cir.

1977) (“No right of a state is entitled to greater respect by the

federal courts than the state’s right to determine how revenues

should be raised and how and for what purposes public funds

should be expended.”). The Supreme Court has repeatedly

emphasized that deference not warranted in other regulatory

areas is warranted when it comes to the tax system. Regan v.

Taxation With Representation of Wash., 461 U.S. 540, 547-

548 (1983) (“Legislatures have especially broad latitude in

creating classifications and distinctions in tax statutes. . . .

‘[I]n taxation, even more than in other fields, legislatures possess the greatest freedom in classification.’ ” (quoting Madden v. Kentucky, 309 U.S. 83, 87-88 (1940))). The tobacco

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12921
companies can point to no case in which, when the state has

the right both to impose the relevant tax and to promulgate the

relevant speech, the First Amendment mandates that a state

arrange its budgetary categories so as to make the link

between a tax and speech less direct. 

The implication of the tobacco companies’ argument is that

industries subject to an excise tax are entitled to a special veto

over government speech funded by the tax. Such a right, in

turn, would suggest that excise taxes, especially those that

earmark funds for particular purposes, are so unusual or

improper that they should allow payors of those taxes to avoid

the political process and use the courts to control government

speech. This suggestion fundamentally misunderstands the

history of taxation in the United States, because excise taxation targeted at particular goods or industries is not only common but predates the income tax. See U.S. CONST. art. I, § 8,

cl. 1 (“The Congress shall have Power To lay and collect

Taxes, Duties, Imposts and Excises”) (emphasis added); THE

FEDERALIST NO. 12 (Alexander Hamilton) (“[I]n America, far

the greatest part of the national revenue is derived from taxes

of the indirect kind, from imposts, and from excises.”). One

of the earliest Supreme Court cases upheld a uniform national

excise tax on carriages. Hylton v. United States, 3 U.S. (3

Dall.) 171 (1796). And excise taxes are hardly unusual today.

According to the Office of Management and Budget, the federal government collected approximately 67 billion dollars in

excise taxes in 2002. See Office of Management and Budget,

Budget for Fiscal Year 2004, Summary Tables, at http://

www.whitehouse.gov/omb/budget/fy2004/summarytables.html

(last visited Aug. 23, 2004). 

[5] Nor is it a novel feature of American government to

levy an excise tax on a particular industry and then use the

proceeds of that tax in ways that regulate that industry. The

nineteenth century Supreme Court upheld (albeit not against

a First Amendment challenge) a federal tax statute that

required distillers of alcohol to both pay an excise tax and pay

12922 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
the salaries of federal officers supervising the production of

alcohol. United States v. Singer, 82 U.S. (15 Wall.) 111, 118-

19, 122 (1872) (upholding an act requiring distillers to “ ‘reimburse to the United States the expenses and salary of all

storekeepers or other officers in charge of . . . warehouses’ ”).

Excise taxes levied in the name of public health have long

been held constitutionally permissible, even when such taxation has put severe burdens on particular industries. See

McCray v. United States, 195 U.S. 27, 63 (1904) (upholding,

as an exercise of Congress’s ability to protect public health,

the constitutionality of an excise tax on artificially colored

oleomargarine “although it be true that the effect of the tax in

question is to repress the manufacture of artificially colored

oleomargarine”); Patton v. Brady, 184 U.S. 608, 623 (1902)

(upholding an excise tax on tobacco and noting that “it is no

part of the function of a court to inquire into the reasonableness of the excise either as respects the amount or the property upon which it is imposed”). 

Today, a tax on heavy trucks and trailers is dedicated to a

fund intended to improve highways. See 26 U.S.C. § 9503

(establishing a “Highway Trust Fund”); 26 U.S.C. § 4051

(imposing a retail tax on heavy trucks and trailers dedicated

to the Highway Trust Fund). A tax on fishing equipment is

dedicated to government action to preserve fisheries. See 26

U.S.C. § 9504(a) (establishing an “Aquatic Resources Trust

Fund”); 26 U.S.C. § 4161 (imposing an excise tax on sport

fishing equipment dedicated to the Aquatic Resources Trust

Fund). Yet we would not conclude that the manufacturers of

large trucks have a First Amendment right to veto government

speech on highway safety, or that the makers of sonar fish

finders have a First Amendment right to direct government

speech on fishery management. 

[6] There is thus a long history of excise taxation directed

at particular industries in the name of public health and welfare. Despite this history, not one court has upheld a right of

an industry to block otherwise legitimate government activity

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12923
simply because the industry pays an excise tax. The tobacco

companies offer no reason why they should be entitled to such

unique treatment here. 

Significantly, the tobacco companies have not offered any

principle that could limit the consequences of sustaining their

objection. Although the companies claim that they object only

to the denigratory advertisements at issue here, they offer no

principled basis for limiting their “nexus” theory to such

advertisements alone. For example, the tobacco companies do

not explain why, if their First Amendment rights have been

violated solely because of a nexus between the surtax and the

challenged advertisements, they would not also have a right

to challenge the use of surtax funds for anti-tobacco education

in the public schools to the extent that they disagreed with the

state’s educational message. 

[7] Thus, if the tobacco companies were permitted to object

to government speech simply because they pay an excise tax

used to fund speech contrary to their interests, the result could

be not only to reduce government’s ability to disseminate

ideas but also an explosion of litigation that could allow private interests to control public messages. There are numerous

taxpayers who contribute disproportionately through excise

taxes to government speech with which they disagree. If each

were to have a similar right to challenge what it may deem

government “propaganda,” the government’s ability to perform crucial educational and public health activities in the

interests of all citizens would be hampered. Cf. Downs, 228

F.3d at 1015 (noting that if a First Amendment violation

applied to government speech, “[the plaintiff] would be able

to do to the government what the government could not do to

[the plaintiff]: compel it to embrace a viewpoint.”) 

D. Other Limitations on Government Speech and the

Power to Tax

At the risk of repetition, we emphasize that the tobacco

companies do not argue that the government’s speech itself is

12924 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
constitutionally impermissible; nor do they argue that the government has burdened their First Amendment rights through

the exercise of its power to tax. Were the tobacco companies

challenging a California restriction on their ability to express

their views, our analysis would be different. As the district

court noted, there are already several recognized instances of

constitutional limitations on government speech and “government is no more free to disregard constitutional and other

legal norms when it speaks than when it acts.” Bonta, 272 F.

Supp. 2d at 1110. For example, there may be instances in

which the government speaks in such a way as to make private speech difficult or impossible, or to interfere with some

other constitutional right, which could raise First Amendment

concerns. See Warner Cable Communications, Inc. v. City of

Niceville, 911 F.2d 634, 638 (11th Cir. 1990) (“[T]he government may not speak so loudly as to make it impossible for

other speakers to be heard by their audience. The government

would then be preventing the speakers’ access to that audience, and first amendment concerns would arise.”). 

Another limitation on government speech is found in the

Establishment Clause. See Bd. of Educ. of Westside Cmty.

Schs. v. Mergens, 496 U.S. 226, 250 (1990) (“[T]here is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private

speech endorsing religion, which the Free Speech and Free

Exercise Clauses protect.”) (emphasis in original). The dissent, quoting a passage often used by the tobacco companies

in this litigation, invokes Thomas Jefferson’s pronouncement

that “to compel a man to furnish contributions of money for

the propagation of opinions which he disbelieves, is sinful and

tyrannical.” P. Kurland & R. Lerner, eds., 5 THE FOUNDERS’

CONSTITUTION 77 (1987). As the district court carefully

explained, 

The quoted statement is taken from Jefferson’s Virginia Bill for Establishing Religious Freedom, a

landmark anti-establishment measure declaring that

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12925
‘no man shall be compelled to frequent or support

any religious worship, place, or ministry whatsoever.’ Id. It is perhaps significant that the statement

arose in this context, since ‘the Establishment Clause

is a specific prohibition on forms of state intervention in religious affairs with no precise counterpart

in the speech provisions.’ Lee v. Weisman, 505 U.S.

577 (1992). 

Bonta, 272 F. Supp. 2d at 1107 n.25. Jefferson’s comment

was directed to a situation in which the government speech

itself was improper, not to valid taxation used to fund valid

governmental speech. 

There are also strict limits on the government’s ability to

impose taxes that are “general law[s] singling out a disfavored

group on the basis of speech content.” Rust, 500 U.S. at 194;

see also Arkansas Writers’ Project, Inc., 481 U.S. at 228-29.9

A government tax designed to suppress the speech of a targeted group would raise serious First Amendment concerns.

[8] But these are issues not before us. On this record, we

need not determine the metes and bounds of constitutionally

permissible government speech; nor need we articulate

abstract limits on the state’s power to tax. We share our dis9Concerns about forced expression, repression of speech, improper taxation and interference with other constitutional rights could arise, for example, under the facts of Summit Medical Center v. Riley, 284 F. Supp. 2d

1350, 1353-54 (M.D. Ala. 2003), a case cited to us by the tobacco companies. In Summit Medical, it appears that the state of Alabama designed a

program to suppress abortion clinics’ ability to disseminate independent

information, requiring the clinics to purchase from the state and then display information intended to dissuade women from obtaining abortions.

The plaintiffs in Summit Medical challenged the burden this mandatory

purchase-and-display program imposed upon their own expression, as well

as its compulsory and discriminatory nature. Id. at 1354. We take no position on the correctness of the district court’s decision in Summit Medical,

but note that it confronted a factual situation very different from the one

we consider here. 

12926 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
senting colleague’s concern that the government not use its

taxation power to suppress the free expression of disfavored

groups, but the tobacco companies claim no suppression of

ideas. The nexus between excise taxation and government

speech is the only First Amendment argument they raise, and

we limit ourselves to that issue alone. For the reasons set out

above, we reject the companies’ argument. 

II. Seventh Amendment and Due Process Claims 

The tobacco companies also raise a novel claim under the

Seventh Amendment. They note that they face litigation in

state and federal courts. They argue that because the advertisements publicly disparage the reputation and character of

the tobacco industry, their right to receive a jury trial under

the Seventh Amendment has been infringed because potential

future jurors in potential future trials could be biased by the

advertising. They do not, however, allege that any actual trial

in which they have participated was rendered unconstitutionally unfair by the challenged advertisements. 

There are a number of problems with this argument. The

companies cite only to cases involving a criminal defendant’s

Sixth Amendment right to jury trial in criminal cases or to

interpretations of the procedural rules governing the federal

courts, and not to any case suggesting that they have an independent Seventh or Fourteenth Amendment right to be free of

disparaging state speech before a civil trial. Moreover, as the

district court noted, the Seventh Amendment’s guarantee of

the right to a civil trial by jury does not apply to the states and

was not incorporated into the Fourteenth Amendment. See

Dohany v. Rogers, 281 U.S. 363, 369 (1930); Walker v. Sauvinet, 92 U.S. 90, 92 (1875). Therefore, whether parties may

raise claims against state officials under 42 U.S.C. § 1983 for

Seventh Amendment violations is questionable. 

[9] We need not consider these issues, however. Even

assuming that the tobacco companies may properly allege a

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12927
violation of Seventh or Fourteenth Amendment rights due to

juror bias created by these advertisements, the proper context

for raising such issues is an actual jury trial where a court

could consider whether real jurors actually have been biased.

Allegations of juror bias are traditionally resolved by the

court conducting the trial, not courts considering hypothetical

future proceedings. See Smith v. Phillips, 455 U.S. 209, 217

(1982) (“Due process means a jury capable and willing to

decide the case solely on the evidence before it, and a trial

judge ever watchful to prevent prejudicial occurrences and to

determine the effect of such occurrences when they happen.

Such determinations may properly be made at a hearing [conducted by the trial court].”). None of the cases cited by the

companies supports their asserted right to be free from negative publicity because potential jurors may be prejudiced in

potential cases, and we are aware of no case that supports

their claim that this court should enjoin certain speech in

order to protect the alleged injury occurring in another court.

The tobacco companies do not allege the elements of stigmatization that would violate their due process rights. Cf.

Wisconsin v. Constantineau, 400 U.S. 433, 436 (1971) (establishing that stigma can change a person’s legal status and

therefore constitute a violation of due process). The companies cannot meet the requirements of the “stigma-plus” test

established in Paul v. Davis, where the Supreme Court

explained that in addition to reputational harm, a due process

stigma claim must assert that a recognized liberty or property

right, as secured by the due process clauses, has been violated. 424 U.S. 693, 701 (1976); see also WMX Tech., Inc. v.

Miller, 197 F.3d 367, 374 (9th Cir. 1999) (“[R]eputation,

without more, is not a protected constitutional interest.”). The

companies assert that the alleged deprivation of their right to

a fair jury trial is sufficient to meet the stigma-plus test. In

essence, the companies are trying to bootstrap two arguments

about reputational harm to create a single claim — arguing

that the reputational harm creates juror bias, and that the juror

bias combined with reputational harm creates a constitution12928 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
ally improper stigma. We reject such an attempt at bootstrapping. See Paul, 424 U.S. at 712 (“[P]etitioners’ defamatory

publications, however seriously they may have harmed

respondent’s reputation, did not deprive him of any ‘liberty’

or ‘property’ interests protected by the Due Process Clause.”).

CONCLUSION

[10] For the reasons set forth above, we affirm the judgment of the district court. 

POSTSCRIPT

After we filed our opinion, the Supreme Court decided

Johanns v. Livestock Marketing Ass’n, 125 S. Ct. 2055

(2005), holding that the Beef Promotion and Research Act of

1985 did not violate the First Amendment by imposing an

assessment on all sales and importation of cattle to fund beef

promotional campaigns with which many of the assessed parties disagreed. The Court reasoned, as we do here, that the Act

was not susceptible to a First Amendment compelled-subsidy

challenge because the assessments funded government

speech. Although the Johanns opinion affirms our reasoning,

Judge Trott remains in dissent. He would now remand to the

district court pursuant to the Court’s statement in Johanns that

an as-applied challenge might lie “if it were established . . .

that individual beef advertisements were attributed to respondents.” Id. at 2065. 

Appellants have never, before us or the district court,

claimed that the ads at issue in this litigation could be or were

attributed to them; nor does the record reveal a material question of fact on the issue. A reasonable viewer could not

believe that these anti-industry ads, expressly identified as

“Sponsored by the California Department of Health Services,”

were created, produced or approved by the appellants. The ad

singled out by the dissent as “put[ting] [words] directly into

the mouth of the tobacco industry,” for example, is unmistakR.J. REYNOLDS TOBACCO CO. v. SHEWRY 12929
able satire. In that ad, children play in a schoolyard while cigarettes fall like rain from the sky and a voiceover states “[w]e

have to sell cigarettes to your kids. We need half a million

new smokers a year . . . so we advertise near schools, at candy

counters.” No reasonable viewer could overlook the satirical

tenor of this ad and attribute the voiceover text to actual

tobacco executives. 

We also find inapposite the dissent’s analogy to our recent

order in Charter v. United States Department of Agriculture,

412 F.3d 1017 (9th Cir. 2005). We remanded on the question

of attribution in that case because the record indicated that the

National Cattlemen’s Beef Association “routinely, before

Congress, and in other public ways and in press announcements, states that it is the trade organization and marketing

organization of America’s one million cattle producers.” Id.

at 1019. The record in this case contains no evidence that the

state ever attributed its ads to the appellants or that a reasonable viewer could have done so; accordingly, we reject the

analogy to Charter and decline Judge Trott’s invitation to

remand. 

AFFIRMED.

12930 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
TROTT, Circuit Judge, Dissenting: 

To compel a man to furnish contributions of money

for the propagation of opinions which he disbelieves

is sinful and tyrannical.1

Thomas Jefferson

The atmospheric challenge in this case, which is one we

often face, is to focus not on the overwhelming demerits of

the underlying subject matter — smoking — but on the primary constitutional principle at issue: whether consistent with

the First Amendment’s right against government abridgement

of freedom of speech — which includes “the right to refrain

from speaking at all”

2

 — a state can compel reluctant individuals and private entities directly and exclusively to pay for

and to support a public interest message with which the entities disagree and which subjects them public scorn, obloquy,

and even hatred. It would be a mistake in this principled context to become overly distracted by the medical, physical, personal, financial, and addictive havoc knowingly inflicted for

profit upon the public by the tobacco industry; or to be influenced by the hundreds of thousands of premature, preventable, and horrible smoking deaths caused by cancer,

emphysema, heart and lung disease, and stroke. There is little

doubt that government, in its role as steward of the public’s

general welfare, can mount a vigorous public campaign

against smoking and the tobacco industry, and that it can do

so with general tax revenues and by way of “government

speech;” but can government do so using this particular compulsory funding mechanism? Today the target of government

dislike is smoking, but tomorrow it will be something else,

such as Alabama’s imposition, in its the Woman’s Right to

Know Act, of a fee applied to abortion providers for the pro1

See, e.g., Abood v. Detroit Bd. of Education, 431 U.S. 209, 235 n. 31

(1977). 

2Wooley v. Maynard, 430 U.S. 705, 714 (1977). 

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12931
duction by the state of pro-childbirth materials which the providers did not wish to endorse, much less purchase. See Ala.

Code §§ 26-23A - 1 to 13; Summit Medical Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1350 (M.D. Alabama

2003). Who knows whose disfavored ox or whose industry or

business or lifestyle will be the next to be fatally gored in this

manner by a well-intentioned government. 

Moreover, hanging over this controversy like a blinking

yellow light in the constitutional sky is Chief Justice Marshall’s timeless admonition in McCulloch v. Maryland, 4

Wheat. 316, 4 L.Ed. 579 (1819), that “the power to tax is the

power to destroy.” This warning is not only memorable, but

it reminds us that might, especially in the hands of government, does not always make right. 

There appears no doubt that California’s goal is to destroy

the industry singled out for this targeted and exclusive tax.

Although an earnest deputy attorney general denied this lethal

purpose during oral argument, claiming that the Act’s only

purpose was to inform the public, her boss, the Attorney General of California William Lockyer, forthrightly said differently after the hearing. Attorney General Lockyer, who took

the unusual step of attending the argument himself, is quoted

by the Los Angeles Daily Journal as calling the tobacco companies “merchants of death” and agreed that the ad campaign

aimed to put them out of business. He added that “the democratic process will provide a check on the use of taxes to fund

such messages. Elected officials are responsible for appropriating the money . . . . If voters don’t like the message, they

can oust the messenger.”

3

 Query. 

So this is the issue: can government, consistent with the

First Amendment’s right against the abridgment of free

speech, create a public information program against an indus3Los Angeles Daily Journal, Tuesday, May 11, 2004, “Court revisits

anti-smoking ad campaign.” 

12932 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
try funded by a targeted excise tax imposed solely upon that

industry and which is segregated in a special state health education account? Not surprisingly, in our system which values

not just good goals but also the right process, the question

here is not ends, but means.

DISCUSSION

First Amendment Claim

1. Government and Compelled Speech

The First Amendment provides that “Congress shall make

no law . . . abridging the freedom of speech . . . .” U.S. Const.

amend. I. It is axiomatic that “[j]ust as the First Amendment

may prevent the government from prohibiting speech, the

Amendment may prevent the government from compelling

individuals to express certain views . . . or from compelling

certain individuals to pay subsidies for speech to which they

object.”

4 United States v. United Foods, 533 U.S. 405, 410

(2003). In United Foods, the latest in a series of compelled

assessments cases, the Supreme Court held that government’s

forced assessments of mushroom producers, which funded

advertisements promoting mushroom sales, violated the First

Amendment. Relying primarily upon United Foods, appellants assert that California’s targeted tax, which funds antiindustry advertisements, violates their right against compelled

financing of speech. 

By labeling the anti-tobacco advertisements “government

speech,” the majority concludes that the targeted tax is clear

4W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) provides

an often quoted passage regarding the extension of free speech protections

to those who wish not to speak: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what

shall be orthodox in politics, nationalism, religion, or other matters of

opinion or force citizens to confess by word or act their faith therein.” Id.

at 642. 

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12933
of First Amendment concerns. I respectfully disagree. Though

the Supreme Court has embraced the existence of a “government speech” doctrine in this general context, United Foods,

533 U.S. at 417, the Court has not provided a clear explanation of the reach or proper application of the doctrine. The

appellants assert that the central question is the source of the

funding for the particular speech, contending that a targeted

tax on a particular group to fund speech opposed to by that

group constitutes unconstitutional compelled speech. Ultimately, the State’s argument that the First Amendment’s protections against compelled speech can be avoided by finding

that the speech is spoken by the government is at odds with

the force and logic of controlling authority. 

2. Government Speech

Focusing on the Supreme Court’s brief reference to the

government speech inquiry in United Foods, and the Court’s

discussion of government speech in other contexts, see, e.g.,

Lebron v. National Railroad Passenger Corp., 513 U.S. 374

(1995), the State asserts that the government is free from First

Amendment concerns “when the state is the speaker.” Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S.

819, 833 (1995).5 Specifically, the State asserts that because

the speech at issue is not explicitly attributed to appellants,

the free speech concerns of traditional compelled speech

cases, see, e.g., Wooley, 430 U.S. 705, are absent. Moreover,

5

I note that the State also supports its position with general pronouncements made by the Court in its compelled assessments of speech cases

indicating that the proper functioning of government requires the government to have control over the nature and content of its speech. See, e.g.,

Keller v. State Bar of California, 496 U.S. 1, 12-13 (1990) (“Government

officials are expected as part of the democratic process to represent and

espouse the views of a majority of their constituents. . . . If every citizen

were to have a right to insist that no one paid by public funds to express

a view with which he disagreed, debate over issues of great concern to the

public would be limited to those in the private sector, and the process of

government as we know it would be radically transformed.”) 

12934 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
the state asserts that the source of the State’s funding for its

speech is irrelevant to the question of the constitutionality of

the particular speech. 

The State’s arguments, however, are not consistent with the

trajectory and force of the Supreme Court’s recent compelled

speech jurisprudence. Specifically, the State’s framework

ignores the central lesson of United Foods: in that case, the

Supreme Court reigned in its previous pronouncements in

Glickman v. Wileman Bros. & Elliott, 521 U.S. 457, 476

(1997) that coerced government speech is akin to economic

regulation and not entitled to First Amendment protection.

See Glickman, 521 U.S. at 476. Instead, the United Foods

Court propounded a broad constitutional protection against

compelled contributions for commercial speech. See United

Foods, 533 U.S. at 414. Indeed, applying United Foods, one

court has held that the issue of government speech, which

generally involves the state’s power to control the content of

its speech, is fundamentally different from the “government’s

authority to compel [plaintiffs] to support speech with which

they personally disagree; such compulsion is a form of ‘government interference with private speech.’ ” Livestock Marketing Ass. v. USDA, 335 F.3d 711, 720 (8th Cir. 2003)

(holding compelled contributions in beef promotion violated

First Amendment) (certiorari granted in part by Veneman v.

Livestock Marketing Ass’n, 124 S.Ct. 2389 (U.S. May 24,

2004) and Nebraska Cattlemen, Inc. v. Livestock Marketing

Ass’n, 124 S.Ct. 2390 (U.S. May 24, 2004). As Justice

Thomas stressed in concurrence, “[a]ny regulation that compels the funding of advertising must be subjected to the most

stringent First Amendment scrutiny.” United Foods, 533 U.S.

at 419 (Thomas, J., concurring). Finally, the State’s argument

necessarily relies on an untenable distinction between government speech activities paid directly from the government treasury, or coordinated by traditional government agencies, and

those that are coordinated by more complex regulatory organizations and schemes, even when such schemes are funded

and run by the government. As one commentator has noted,

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12935
“[g]overnment speech cannot logically be made a function of

the office of the person making the allocation decision. That

approach would elevate form over substance and would

enable the government to dictate the First Amendment result

simply by manipulating the agency in the decision-making

process.” Randall P. Bezanson & William G. Buss, The Many

Faces of Government Speech, 86 Iowa L. Rev. 1377, 1430

(2001). 

Accordingly, recognizing the principle expressed in United

Foods, the appellants clearly have a First Amendment interest

at stake that is not erased by pigeonholing the ads as “government speech.” The question remains, however, whether the

compelled speech does indeed violate appellants’ free speech

rights, an analysis that is governed by the Supreme Court’s

compelled speech line of cases, including Abood, Keller,

Glickman, and United Foods. 

3. Compelled Speech

Appellants rely on the string of cases, beginning with

Abood, concerning compelled contributions to speech, and

assert that there exists the fundamental principle that, under

the First Amendment, a discrete group should not be specifically taxed to fund speech with which they disagree. Indeed,

this proffered principle provides a coherent picture of the puzzle with which courts have been struggling. See, e.g., Summit

v. Medical Ctr. of Al. v. Riley, 284 F.Supp.2d 1350, 1360

(holding that state’s imposition of “a direct fee assessment on

a limited class of citizens — abortion providers — and using

the revenue to advance speech in support of the State’s

favored policy position on abortion” intruded on abortion provider’s free speech rights) (emphasis added); United States v.

Frame, 885 F.2d 1119 (3d Cir. 1989) (“[W]here the government requires a publicly identifiable group to contribute to a

fund earmarked for the dissemination of a particular message

associated with that group, the government has directly

focused its coercive power for expressive purposes.”) (citation

12936 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
omitted) (emphasis added). The United Foods Court

announced that the “question is whether the government may

underwrite and sponsor speech with a certain viewpoint using

special subsidies exacted from a designated class of person,

some of whom object to the idea being advanced.” United

Foods, 533 U.S. at 410. And in United Foods, the Court

answered: No. Id. at 411. 

In answering the question, however, the Court was forced

to distinguish another recent compelled speech case, Glickman, which was factually similar to United Foods, but where

the Court had found that no First Amendment issues were

raised by the forced subsidies. 521 U.S. at 460. In Glickman,

the Court determined that “criticisms of generic advertising

provide no basis for concluding that factually accurate advertising constitutes an abridgement of anybody’s right to speak

freely.” Id. at 474. The United Foods Court distinguished

Glickman by asserting that the program in Glickman “mandated assessments for speech [which] were ancillary to a more

comprehensive program restricting marketing autonomy.”

United Foods, 533 U.S. at 411-12. 

Thus, after distinguishing Glickman, and finding that First

Amendment interests were at stake, the Court proceeded to

apply the tenets established in Abood and Keller, which established the “germaneness test.” United Foods, 533 U.S. 413.

That test requires any coerced subsidized speech be germane

to the larger purpose of the association at issue. Abood, 431

U.S. at 235 (holding that union can only finance speech not

germane to collective bargaining with non-objecting members’ funds); Keller, 496 U.S. at 13-14 (holding that state bar

association can only compel payment for activities related to

bar’s purposes).6

6

I note that the district court’s decision relied on the question of association and stressed the non-associational nature of the tobacco industry

being taxed, thereby distinguishing the Abood line of cases. Those cases

stressed that there exists “a First Amendment interest in not being comR.J. REYNOLDS TOBACCO CO. v. SHEWRY 12937
Guided by Glickman and United Foods, and looking at the

statutory scheme provided in the Act, it is clear that the

tobacco companies are not similarly situated to the tree growers in Glickman, as they are not “bound together and required

by statute to market their products according to cooperative

rules” for purposes other than advertising or speech. United

Foods, 533 U.S. at 412. Nor is the statutory scheme directly

congruous with that in United Foods, as the ads in this case

are a part of a larger regulatory scheme, and thus not clearly

“a program where the principal object is speech itself.” Id. at

415. Thus, the Act is different from both the statute analyzed

in United Foods and the statute in Glickman. Moreover, the

fact that the speech at issue involves, not the promotion of the

relevant group’s product, but the disparagement of the entire

industry, only increases the difficulty of resolving this case.

Given the unique nature of the question presented, proper

review of the Act must acknowledge United Foods’s obvious

pelled to contribute to an organization whose expressive activities conflict

with one’s ‘freedom of belief.’ ” Glickman, 521 U.S. at 471 (quoting

Abood, 431 U.S. at 235). The district court found that because the appellants subject to the surtax were not members of a particular association,

their free speech rights were not undermined by any compelled financing

of speech made on behalf of that association. This finding is also supported by some of the Court’s language in United Foods, where it noted

that there is “a threshold inquiry . . . whether there is some state imposed

obligation which makes group membership less than voluntary; for it is

only the overriding associational purpose which allows any compelled

subsidy for speech in the first place.” United Foods, 533 U.S. at 413.

However, hinging the right to be free from compelled commercial speech

on whether there is an associational interest at stake ignores the obvious

fact of what the Court actually did in United Foods. Indeed, the Court not

only found that the compelled subsidies constituted an unconstitutional

infringement on the dissenting mushroom grower’s speech rights, but it

did so after expressly distinguishing Glickman on the grounds that there

was no “regime of cooperation” as presented in Glickman. Id. at 415.

Therefore, though the Court saves some of its associational rights rhetoric,

the practical effect of its decision in United Foods is to unhinge its compelled speech analysis from the previously-pronounced requirement that

there be an involuntary group membership. 

12938 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
retreat from Glickman, and the Court’s pronouncement of

broadened protection against compelled speech. In this

regard, as the appellants assert, United Foods and the Court’s

previous compelled speech case law can be reconciled and

understood by applying what United Foods explicitly stated:

the First Amendment forbids certain compelled assessments

from “a particular citizen, or a discrete group of citizens, to

pay special subsidies for speech.” 533 U.S. at 411. 

As the Third Circuit recently explained, however, though a

case may be properly characterized as a compelled speech

case, “[t]he Supreme Court . . . has left unresolved the standard for determining the validity of laws compelling commercial speech . . . .” Cochran v. Veneman, 359 F.3d 263, 277

(3rd Cir. 2004). In Cochran, the court also explained that

there are several standards available which the courts may try

to apply: 1) the lenient standard derived from commercial

speech cases, see, e.g., Central Hudson Gas & Elec. Corp. v.

Pub. Serv. Comm’n, 447 U.S. 557, 564 (1980), or some adaptation of that commercial speech standard, see, e.g., Livestock

Marketing, 335 F.3d at 722-23; 2) the “germaneness test” of

traditional compelled speech cases, see, e.g., Abood, 431 U.S.

at 235-36, and 3) the stringent standard of associational cases,

see, e.g., United States v. Frame, 885 F.2d 1119 (3rd Cir.

1989). 

The speech and the funding mechanism in this case is questionable under whatever standard one uses. In Central Hudson, the Court held that commercial speech is to be evaluated

using intermediate scrutiny. That is, 1) the state must “assert

a substantial government interest;” 2) “the regulatory technique must be in proportion to that interest;” and 3) the incursion on commercial speech “must be designed carefully to

achieve the State’s goal.” 447 U.S. at 564. Under this standard, though never before applied to compelled commercial

speech cases,7 the speech regulation at issue, and the targeted

7

I note, in this regard, that the Supreme Court in United Foods refused

to apply the Central Hudson test because the “Government itself [did] not

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12939
tax placed on appellants, constitutes a disproportional and

overly burdensome regulatory technique, thereby failing the

second and third prongs of the Central Hudson test. Indeed,

the speech in this case is exceptional in its difference from

what the Court has previously encountered in its compelled

commercial speech cases. Whereas previous cases generally

involve promotional activity, see, e.g., Glickman, 521 U.S. at

474; United Foods, 533 U.S. at 413-14, here, California is

specifically targeting one discrete and largely disfavored

group, forcing that group to meet the State’s regulatory goals

by directly financing speech designed to undermine that

group’s status and reputation. Though the State’s goals may

be strong and laudatory, the methods used seriously undermine the particular group’s speech rights and seem disproportional to the goals to be achieved. Accordingly, the Act cannot

survive Central Hudson’s intermediate scrutiny. 

Moreover, as did the Sixth Circuit in Michigan Pork Producers Ass’n, Inc. v. Veneman, 348 F.3d 157 (6th Cir. 2003),

I “find inapplicable to this case the relaxed scrutiny of commercial speech analysis . . . .” Id. at 163 (citing Glickman, 521

U.S. at 474 n.18 (questioning whether “the Central Hudson

test, which involved commercial speech should govern a case

involving the compelled funding of speech”). The speech in

this case is materially different from the speech issuing from

the private sector that we normally label as commercial. 

Applying the “germaneness test” derived from Abood and

its progeny, the compelled speech here would also fail. The

Supreme Court expressly applied this test in United Foods,

and found that “the expression respondent [was] required to

rely upon Central Hudson to challenge the Court of Appeals’ decision.”

533 U.S. at 410. Accordingly, other courts have recognized that the Central Hudson test has never been applied by the Supreme Court to compelled assessment of commercial speech cases. See Cochran, 359 F.3d at

277. 

12940 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
support [was] not germane to a purpose related to an association independent from the speech itself.” United Foods, 533

U.S. at 415-16. Of course, as previously explained, there is no

relevant association of tobacco companies for purposes of this

analysis. As the Court stressed in United Foods, the question

is not whether the State necessarily has a larger regulatory

purpose justifying the speech, but whether there is a “cooperative marketing structure . . . to sustain an ancillary assessment” for speech. Id. Here, as in United Foods, there is no

collective association to which the compelled assessments for

speech is germane. 

Finally, as in Frame, a pre-Glickman and pre-United Foods

case, the Third Circuit applied the stringent associational

rights standard of Abood, but upheld the constitutionality of

the beef regulatory statute in question because of the compelling state interest involved. Frame, 885 F.2d at 1134. In refusing to extend Frame’s reach after United Foods, however, the

same court held in Cochran that United Foods established

that “promotional programs . . . seem really to be special

interest legislation on behalf of the industry’s interests more

so than the government’s[,]” and therefore constitute unconstitutional compelled speech for those dissenting from the

promotions. 359 F.3d at 279. 

What has survived from Frame is the principle that in the

review of a compelled financing statute’s intrusion into free

speech rights, “it is relevant to consider ‘the coerced nexus

between the individual and the specific expressive activity.’ ”

Summit, 284 F.Supp.2d at 1360 (quoting Frame, 885 F.2d at

1119). Here, the nexus is vital: unlike a situation in which

money is allocated from the general treasury fund, individuals

who have specifically been targeted by the speech are forced

to pay for the speech. See id.

4. Conclusion

In sum, review under any of the available standards reveals

that the compelled assessments in this case constitute an

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12941
exceptional case of government intrusion on the right not to

be compelled to finance speech. Indeed, the Act is designed

to force one particularly disfavored group to fund speech

directly undermining that group’s reputation. Such state

action offends the very essence of the First Amendment. See

e.g., Sons of Confederate Veterans v. Comm’r of the Va. Dept.

of Motor Vehicles, 305 F.3d 241, 242 (4th Cir. 2002) (“[T]he

First Amendment was not written for the vast majority. . . .

It belongs to the minority of one.”) (Wilkinson, C.J., concurring in denial of rehearing en banc). 

Moreover, the State can provide no limiting principle, no

logical reason why, if the government is free to tax and speak

in this manner against this group, it cannot do so against any

other disfavored group or individual. See Summit Medical Ctr.

of Alabama, 284 F.Supp.2d, at 1361 (refusing to apply the

district court’s analysis in this case, and finding that Alabama’s statute forcing abortion providers to pay for the state’s

informational materials infringes plaintiffs’ First Amendment

rights). Contrary to the Attorney General’s claim that the

democratic process will provide a check on the use of taxes

to fund such messages, by removing the burden of the cost of

this program from every taxpayer except the ones targeted,

this tax becomes the ultimate cheap shot, one not fully subject

to the considerations that normally attend the decision to

require the public at large to pay for something. See Board of

Regents v. Southworth, 529 U.S. 217, 229 (2000) (traditional

political controls ensure responsible government).8 Furthermore, the approach I take does not hinder or unduly burden

the State’s right or power to speak, and it does not interfere

with the imposition of excise or other taxes. It simply requires

8

In Michigan Pork Producers Ass’n v. Venenan, 348 F.3d 157 (6th Cir.

2003), one significant factor in the court’s determination that the speech

involved was not government speech was that the funding did not come

from general tax revenues. Id. at 162. See also Livestock Marketing Ass’n,

335 F. 3d at 720 (the flaw in the government speech argument is that the

plaintiff’s funds were identifiable as the funds used to finance the speech

to which they objected). 

12942 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
the government when doing so to stay within normal channels

and to avoid First Amendment violations. Under the reasoning and force of the Supreme Court’s compelled speech cases,

particularly the Court’s recent pronouncements in United

Foods, I respectfully believe the majority’s argument,

although well presented and articulated in their opinion, is

without merit. 

POSTSCRIPT

Shortly after I circulated this dissent, the Supreme Court

decided Johanns v. Livestock Marketing Ass’n, 544 U.S.

______, 125 S.Ct. 2055 (2005). For the majority of the Court,

Justice Scalia wrote: 

The compelled-subsidy analysis is altogether unaffected by whether the funds for the promotions are

raised by general taxes or through a targeted assessment. Citizens may challenge compelled support of

private speech, but have no First Amendment right

not to fund government speech. And that is no less

true when the funding is achieved through targeted

assessments devoted exclusively to the program to

which the assessed citizens object. The First Amendment does not confer a right to pay one’s taxes into

the general fund, because the injury of compelled

funding (as opposed to the injury of compelled

speech) does not stem from the Government’s mode

of accounting. 

Id. at ______ (second emphasis added) (citations omitted). 

Not surprisingly, California’s Attorney General suggests

that this ruling “eliminates all possible doubt about the correctness” of the majority’s decision. I do not agree. 

The Johanns Court suggests, while “express[ing] no view

on the point,” that if it were to be shown that the challenged

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12943
speech would “convince a reasonable factfinder” that “all . . .

producers[ ] would be tarred with the content of each trademarked ad,” an “as applied” First Amendment challenge

might lie. Id. at __________. (emphasis added). 

Writing separately, Justice Thomas advanced the same suggestion: 

Still, if the advertisements associated their generic

pro-beef message with either the individual or organization respondents, then respondents would have a

valid as-applied First Amendment challenge. The

government may not, consistent with the First

Amendment, associate individuals or organizations

involuntarily with speech by attributing an unwanted

message to them, whether or not those individuals

fund the speech, and whether or not the message is

under the government’s control. This principle follows not only from our cases establishing that the

government may not compel individuals to convey

messages with which they disagree, . . . but also

from our expressive-associate cases, which prohibit

the government from coercively associating individuals or groups with unwanted messages. 

Id. at ______. (emphasis added) (citations omitted). 

Here, one challenged government television ad —

described by my colleagues as “particularly striking” — uses

a voice-over technique to speak to the public on behalf of the

tobacco industry. The words put directly into the mouths of

the tobacco industry disparagingly associate the appellants

and the industry with the unwanted message about which they

now complain: 

We have to sell cigarettes to your kids. We need half

a million new smokers a year just to stay in business

so we advertise near schools, at candy counters. We

12944 R.J. REYNOLDS TOBACCO CO. v. SHEWRY
lower our prices. We have to. It’s nothing personal.

You understand. 

The “we” is the appellants. 

If this language, albeit couched in a literary device, does

not “tar all in the industry” required to pay for the ad, and if

this language does not “coercively associate” and intentionally smear the appellants — all of them — with an “unwanted

message” to which they object, it is hard to know what does.

I respectfully disagree with the district court’s preemption of

this issue as a matter of law. The facts are such as to survive

summary judgment and should be submitted — as suggested

by the Supreme Court — to a factfinder. 

At the very least, we should take our lead from our recent

decision in Charter v. United States Department of Agriculture, _____ F.3d _____, _____ (9th Cir. 2005), recognizing

the difference between that case and Johanns with respect to

a possible attribution/association “as applied” challenge: 

In light of the Supreme Court’s recognition [in

Johanns] (without expressing a view on the issue)

that an attribution claim might form the basis for an

as-applied First Amendment challenge to the Act,

the district court’s decision must be vacated and the

case remanded for further proceedings to determine,

among other things, whether speech was attributed to

appellants and, if so, whether such attribution can

and does support a claim that the Act is unconstitutional as applied. Id.; see also id. at *9 n.* (Thomas,

J., concurring) (noting that, pursuant to Federal Rule

of Civil Procedure 15, “on remand respondents may

be able to amend their complaint to assert an attribution claim”). 

There is a world of difference between what was at issue

and at stake in Johanns and what is on our docket here. In

R.J. REYNOLDS TOBACCO CO. v. SHEWRY 12945
Johanns, the question was whether, consistent with the First

Amendment, the government could compel beef producers to

fund by way of mandatory assessments a generic advertising

program promoting the sale of beef. 7 U.S.C. § 2901(b). In

our case, however, the purpose of the coerced speech is deliberately destructive of those forced to pay for it — not so in

Johanns. Does this difference matter here? I believe it does.

The difference is not just one of degree, but of material kind.

It is one thing to promote the sale of an agricultural product;

it is altogether another to attempt to destroy an entire legal

industry. 

I see this case as distinguishable from Johanns, and I continue respectfully to dissent. In my view, we should remand

to the district court for reconsideration on the “as applied”

issue as newly articulated in Johanns itself. 

12946 R.J. REYNOLDS TOBACCO CO. v. SHEWRY